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HomeMy WebLinkAboutAgreement A-16-598.pdf16-1185 Agreement No. 16-598 NORTH KINGS GROUNDWATER SUSTAINABILITY AGENCY JOINT POWERS AGREEMENT THIS NORTH KINGS GROUNDWATER SUSTAINABILITY AGENCY JOINT POWERS AGREEMENT (this "Agreement") is made and entered into this.;lt+h day of ~ ~. 2016 (the "Effective Date") by and between the Fresno Irrigation District, the County of Fresno, the City of Fresno, the City of Clovis, the City of Kerman, Biola Community Services District, Garfield Water District, and International Water District, each a "Member" and collectively, the "Members." RECITALS A. Whereas, on September 16, 2014, the Governor of the State of California signed into law Senate Bills 1168 and 1319, and Assembly Bill1739 collectively, the Sustainable Groundwater Management Act, which is codified at Water Code Sections 10720 et seq.; and B. Whereas, the Act allows certain local agencies to become a Groundwater Sustainability Agency ("GSA") and adopt a Groundwater Sustainability Plan ("GSP") as a means to manage and regulate groundwater in an underlying groundwater basin, which is defined as a basin or subbasin identified and defined in California Department of Water Resources Bulletin 118; and C. Whereas, each Member is a local agency as defined in Section 10721 (n) of the California Water Code that is eligible to become a GSA and adopt a GSP as provided in the Act; and D. Whereas, the Act set forth that multiple local agencies overlying a single groundwater basin or subbasin may adopt individual GSPs if those plans are coordinated, or may join together to adopt a single plan; and E. Whereas, each Member to this Agreement overlies a portion of the Kings Subbasin as it is currently defined by the California Department of Water Resources Bulletin 118 and each Member desires to participate in the implementation of the Act specifically within the area identified as the North Kings Subbasin in Exhibit A; and F. Whereas, the Joint Exercise of Powers Act (Government Code Sections 6500 et seq.) provides that two or more public agencies may by agreement jointly exercise any powers common to those agencies and may by that agreement create an entity separate from the Members to the Agreement; and G. Whereas, each Member signing this Agreement is a public entity organized and operating under the laws of the State of California, and/or a public agency as defined in California Government Code Section 6500; and North Kings GSA JPA North Kings GSA JPA 2 H. Whereas, the Members intend by this Agreement to create a joint powers authority (“JPA”) for the purpose of acting as a separate and independent public agency and as a single GSA for this area, hereinafter identified as the North Kings Groundwater Sustainability Agency (“NKGSA”); and I. Whereas, the Members, agree among themselves, and agree to require Contracting Entities and Interested Parties, to comply with Section 10720.5 of the Act, which states, in part, “nothing in this part, or in any groundwater management plan adopted pursuant to this part, determines or alters surface water rights or groundwater rights under common law or any provision of law that determines o r grants surface water rights.” NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions herein and these Recitals, which are hereby incorporated by this reference, it is agreed by and among the Members hereto as follows: Article I: Definitions As used in this Agreement, unless the context requires otherwise, the meaning of the terms hereinafter set forth shall be as follows: A. “Act” shall mean the Sustainable Groundwater Management Act of 2014 and all regulations adopted under the legislation (SB 1168, SB 1319, and AB 1739) which collectively comprise the Act, as that legislation and those regulations may be amended from time to time. B. “Authority” or “NKGSA” shall mean the North Kings Groundwater Sustainability Agency Joint Powers Authority, which is the public and separate legal entity created by this Agreement. C. “Board of Directors” or “Board” shall mean the governing body of the Autho rity as established by Section 3.01 of this Agreement. D. “Contracting Entity” shall mean one of any number of water companies regulated by the California Public Utilities Commission providing water service in the North Kings Subbasin that enters into a Participation Agreement, as defined below, with the Authority. The initial Contracting Entity shall be Bakman Water Company, as established through execution of a Participation Agreement. E. “Fiscal Year” shall mean that period of twelve (12) months established as the Fiscal Year of the Authority pursuant to Section 4.01 of this Agreement. F. “Groundwater Sustainability Agency” or “GSA” shall mean an agency enabled by the Act to regulate all or a portion of a subbasin in a coordinated manner with all other surrounding Groundwater Sustainability Agencies in compliance with the terms and provisions of the Act. North Kings GSA JPA 3 G. “Groundwater Sustainability Plan” or “GSP” shall mean the plan developed, adopted and implemented by the Authority in accordance with the Act. H. “Interested Parties” shall mean those public and private entities that have (i) either opted not to become Members of the Authority or are legally precluded from becoming Members, and/or (ii) been designated by the Board of Directors as “Interested Parties” as required by Water Code. Those identified on the attached Exhibit B shall be the initial Interested Parties. The Board of Directors may from time to time add additional Interested Parties or remove Interested Parties. An Authority Board-authorized representative of an Interested Party is eligible to serve as a member of the Board of Directors through execution of a Memorandum of Understanding with the Authority. Interested Parties shall be provided with an opportunity to provide input on the Authority’s activities for consideration by the Board of Directors, committees and Members. I. “Member” shall mean any of the signatories to this Agreement and “Members” shall mean all of the signatories to this Agreement. J. “Party” or “Parties” shall mean the collective whole of Members signing this agreement, and those Contracting Entities and Interested Parties involved in the Authority via a Participation Agreement(s) or one or more Memorandum of Understanding approved by the Board of Directors. K. “North Kings Subbasin” shall mean the area depicted on Exhibit A. L. “Participation Agreement” means an agreement between the Authority and a Contracting Entity, which provides that the Contracting Entity: (1) may be represented on the Board of Directors of the Authority; (2) shall otherwise participate in the GSA formed by the Authority; (3) shall contribute to the costs of the Authority as specified in such Participation Agreement; and (4) shall have the rights and duties as set forth in this Agreement and the Participation Agreement. M. “Project Agreement” means an agreement between the Authority and two or more of its Parties to provide for carrying out Special Activities, as defined below, that are within the authorized purposes of the Authority, and sharing in the costs and benefits by the parties to the Project Agreement. N. “Special Activities” shall mean activities consistent with the purpose of this Agreement, but which are undertaken by fewer than all Parties. North Kings GSA JPA 4 Article II: Creation of Authority Section 2.01 – Creation. A. Pursuant to Government Code Section 6503.5, the Members of this Agreement hereby create a public entity separate and independent from the Members. B. Pursuant to Government Code section 6509, the County of Fresno is the designated agency with respect to the Authority’s exercise of power. C. Within thirty (30) days after the Effective Date of this Agreement and after any amendment, the Authority shall cause a notice of such Agreement or amendment to be prepared and filed with the office of the California Secreta ry of State containing the information required by Government Code Section 6503.5. D. Within seventy (70) days after the Effective Date of this Agreement, the Authority shall file with the Secretary of State on a form prescribed by the Secretary of State and also with the county clerk of each county in which the Authority maintains an office, a statement of the following facts: 1. The full legal name of the Authority. 2. The official mailing address of the governing body of the Authority. 3. The name and residence or business address of each member of the governing body of the public agency. 4. The name, title, and residence or business address of the chairman, president, or other presiding officer, and clerk or secretary of the governing body of the Authority. E. Within ten (10) days after any change in the facts listed in section 2.01(C), the Authority shall file an amended statement as required in Government Code Section 53051. The Members, pursuant to their joint exercise of powers, hereby create a public entity to be known as the “North Kings Groundwater Sustainability Agency.” Section 2.02 – Purpose. The Authority is formed with the purpose and intent of jointly forming a separate entity to fulfill the role of a GSA so that the Members, in consultation with the Contracting Entities and Interested Parties involved in the Authority via a Participation Agreement(s) or one or more Memorandum of Understanding, may collectively develop, adopt, and implement a GSP for the sustainable management of groundwater for that portion of the Kings Subbasin underlying the jurisdictional boundaries of the Members, as those boundaries may be amended from time to time. North Kings GSA JPA 5 Notwithstanding their intent to collectively develop, adopt, and implement a GSP, the Parties shall maintain complete control and autonomy over the surface water and groundwater supply assets to which they are currently legally and individually entitled, and make no commitments by entering into this Agreement to share or otherwise contribute their water supply assets as part of the preparation or participation in a GSP. The Members may exercise independent power within their own jurisdiction, including but not limited to, conducting Special Activities establishing or approving fees, and exercising and administering all powers held by each Member with regards to groundwater management and regulation as they existed prior to the approval of this Agreement or consistent with the Act, except as otherwise provided in this Agreement or as required by the Act. Members may be responsible within each of their own jurisdictions or service areas (or a Contracting Entity may be responsible with its Public Utility Commission service area as provided in a Board of Director’s approved Participation Agreement, or the area of an Interested Party as provided in a Board of Director’s approved Memorandum of Understanding), for the implementation of any GSP developed by the Authority, unless otherwise provided for in this Agreement, by decision of the Board of Directors, or as required by the Act. Members that are responsible for implementation and have overlapping jurisdictional boundaries may enter into a separate memorandum of understanding to determine their respective responsibilities under this paragraph, subject to the approval of the Board of Directors. Each Member will be responsible for adhering to the terms of this Agreement, for constructively participating in the efforts to achieve compliance with the Act, and for timely payment of contributions that are approved by the Board of Directors in compliance with this Agreement. Activities unrelated to the sustainable management of groundwater in the Kings Subbasin as provided in the Act shall not be undertaken by the Authority. Section 2.03 –Powers. The Authority shall have the power to take any action to carry out the purposes of this Agreement. Subject to the applicable voting requirements described in this Agreement, the Authority is authorized, in its own name, to do all acts necessary for the exercise of said powers, including, but not limited to, any and all of the following: A. Undertaking, on behalf of the Parties, all actions required by the California Department of Water Resources (“DWR”) and State Water Resources Control Board (“SWRCB”) for GSA purposes under the Act. B. Conducting research and investigations and compiling appropriate reports for preparing a GSP, and for developing Coordination Agreements, as defined in Water Code section 10721(d), with other GSAs. C. Developing, adopting, and implementing a GSP. D. Adopting initial and annual operating budgets, and establishing Member, Contracting Entity and Interested Party contributions. North Kings GSA JPA 6 E. Making and assuming contracts, and employing agents, employees, consultants, and other such persons or firms as the Board may deem necessary to exercise the Authority’s powers. F. Incurring debts, liabilities, or obligations, subject to the limitations provided in this Agreement. G. Issuing bonds and all other forms of indebtedness, on behalf of the GSA and any separate entity as permitted by the Board of Directors, to the extent and on the terms provided by law for the Authority. H. Cooperating, acting in conjunction with, and contracting with the United States, the State of California or any agency thereof, Counties, and other local agencies, commensurate with the Authority’s powers as a GSA. I. Applying for, accepting and receiving licenses, permits, new or future water rights (to the extent such application does not infringe on the rights of Members, Contracting Entities, or Interested Parties to this agreement), approvals, agreements, grants, loans, gifts, contributions, donations, or other aid from any agency of the United States, the State of California, or other public or private person or entity necessary for fulfilling the purposes of the GSA. J. Acquiring, by eminent domain or otherwise, holding, and disposing of real or personal property. K. Acquiring, leasing, owning, constructing, managing, maintaining, operating, and disposing of buildings, works, or improvements. L. Suing and being sued in its own name M. Providing for the prosecution of, defense of, or other participation in actions or proceedings at law or in public meetings in which the Members, pursuant to this agreement, a Contracting Entity pursuant to a Participation Agreement, or an Interested Party pursuant to a Memorandum of Understanding, may have an interest, and employing counsel or other expert assistance for that purpose. N. Participating in groundwater sustainability projects related to the Act. O. Assisting the Members, pursuant to this agreement, a Contracting Entity pursuant to a Participation Agreement, or an Interested Party pursuant to a Memorandum of Understanding, in groundwater sustainability projects related to the Act. P. Creating committees and sub-committees. Q. Employing the GSA enforcement powers identified in the Act. R. Imposing fees as authorized by the Act. North Kings GSA JPA 7 S. Adopting rules, bylaws, regulations, policies and procedures for governing the operation of the GSA, and adopting and implementing a GSP consistent with the powers and purposes of the Authority and as authorized by the Act. T. Entering into Memorandums of Understanding (“MOU”s), or other legal agreements with private water companies, or other private or public entities, to enable them to participate in the GSA. U. Entering into Project Agreements with Members, Contracting Entities or Interested Parties. Section 2.04 – Adoption of GSP. The Members agree that the GSP shall be coordinated and managed by the Authority, and all modifications or amendments of the GSP shall be adopted only by the Authority’s Board of Directors and in accordance with this Agreement. Article III: Internal Organization Section 3.01 – Governing Body. The governing body of the Authority shall be a seven (7) - member Board of Directors that includes Members, Contracting Entities and Interested Parties, as identified in this Agreement. Table 1 defines the apportionment of Board seats. Table 1 – NKSGSA Governing Body Seat Assignment 1 Fresno Irrigation District 2 Garfield Water District, International Water District, and Fresno Irrigation District1 3 Bakman Water Co., Biola Community Services District, California State University- Fresno, and City of Kerman 4 City of Clovis 1 As identified in Exhibit C, Note 1: Fresno Irrigation District (“FID”), International Water District (“IWD”) and Garfield Water District (“GWD”) have entered into a separate written agreement dealing with how they will exercise the governance responsibilities and voting for Seat # 2, including but not limited to how to exercise the voting rights, succession rights, financial participation in the GSA, the consequences of any mergers or consolidation of any or all of those districts into municipalities, etc., as it affects this “Board Seat Portion” # 2 voting and participation rights in the NKGSA. All Members acknowledge that any withdrawal or termination of IWD or GWD from this JPA shall not divest FID’s retaining its interest in Seat 2 under that separate agreement, any § 5.03 Member vote under this JPA notwithstanding. North Kings GSA JPA 8 5 City of Fresno 6 County of Fresno 7 At-Large Directors shall be elected officials who have been appointed to serve on the Authority’s Board of Directors by their respective boards, councils or commissions, or are the authorized representatives of a Member, Contracting Entity or Interested Party. Where a seat has more than one assigned Party to serve in a Director position, the designation of which Party shall serve a Board term shall be decided through mutual agreement of those who share that seat. If those who share the seat cannot reach a mutual agreement to assign one Party to the seat within sixty (60) days of the seat becoming available, the decision will be made by the remaining members of the Board of Directors. The At-Large seat is appointed by a vote of the remaining Board of Directors of the Authority. Those eligible for this At-Large seat include municipal/industrial water supply Members not currently serving on the Board of Directors, Contracting Entities, and Interested Parties. A. Alternates - Each Director representing a Party, or Parties, on the Board of Directors of the Authority may identify up to two alternates to serve on the Party’s, or Parties’, behalf. Alternates need not be elected officials and may also include a representative of another Party. B. At-Large Alternate – The remaining Board of Directors may designate up to two Members, Contracting Entities or Interested Parties to serve as alternates to the appointed At-Large Director position. C. Vacancies – Filling a vacancy of a Director’s seat (#’s 1-6) is the responsibility of the Party, or Parties, who are represented by that Director’s seat on the Board of Directors. In the event of a vacancy of the At-Large seat (#7), the remaining Board of Directors (Seat #’s 1-6) shall convene a meeting to appoint a designee to fill that seat within ninety (90) days of the vacancy. D. If the Board of Directors determines that reasonable cause exists to remove a Director from the Board, it can request that the Party or Parties that appointed the Director remove the individual and appoint a new Director. Section 3.02 – Board Terms. All Board terms shall be two (2) years. For initiation of the Board, four (4) seats shall be three (3)-year terms. The Member seats with an initial three (3)-year term shall be those seats exclusively held by the City of Clovis, the City of Fresno, County of Fresno, and Fresno Irrigation District. North Kings GSA JPA 9 Section 3.03 – Administration and Officers. The officers of the Authority are the Chair, Vice-Chair, Secretary and Treasurer. A. The Board of Directors shall, at its first meeting and thereafter at its first meeting following July 1 of each succeeding year, elect a Chair and Vice-Chair from among the Directors. The Vice-Chair shall assume responsibilities of the Chair in the absence of the Chair. B. The Secretary shall (1) keep or cause to be kept, at the principal executive office or such other place as the Board may direct, a book of summary minutes of all meetings and actions of the Board of Directors and committees of the Authority, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice given, the names of those present at such meetings and the proceedings of such meetings; and (2) give, or cause to be given, notice of all meetings of the Board and committees of the Authority required by the Bylaws be given. The Secretary has such powers and may perform such other duties as may be prescribed by the Board. C. The Board of Directors shall designate a qualified person to act as the Treasurer of the Authority. The person holding the position of Treasurer of the Authority shall have charge of the depositing and custody of all funds held by the Authority. The Treasurer shall perform such other duties as may be imposed by provisions of applicable law, including those duties described in Governm ent Code section 6505.5, and that may be prescribed by the Board or the Bylaws. In the event that the person designated by the Board is not a Director, the person serving as Treasurer may be reasonably compensated for performing such work. In the event that the person designated by the Authority to perform such services is an employee of a Member, the governing body of that Member shall determine the reasonable charges to be made against the Authority for the services of the Treasurer. The Treasurer shall be responsible for all money of the Authority from whatever source. All funds of the Authority shall be strictly and separately accounted for and regular reports shall be rendered of all receipts and disbursements at least quarterly during the Fiscal Year. The books and records of the Authority shall be open to inspection by the Members and by bondholders as and to the extent provided by resolution or indenture. The Treasurer shall contract with a certified public accountant to make an annual audit of the accounts and records of the Authority which shall be conducted in compliance with Section 6505 of the California Government Code. D. Management: In addition to, or in lieu of, hiring employees, the Authority may engage one or more third parties to manage any or all of the business of the Authority on terms and conditions acceptable to the Board of Directors. A third party so engaged may, but need not, be a Member, Contracting Entity or North Kings GSA JPA 10 Interested Party. Any third party so engaged shall have such responsibilities as are set forth in the contract for such third party’s services. E. Fiscal Agent: Without limiting the breadth of Section 3.03(D), the Board of Directors may select a Member or a third party to act as the fiscal agent for the Authority pursuant to an agreement with the fiscal agent approved by the Board of Directors. Section 3.04 – Voting Thresholds. All decisions require a majority vote of the present and voting Board of Directors, except the following: Table 2 – Voting Thresholds of the NKGSA Board of Directors Key Authority Threshold Adoption of or amendments to the GSP Unanimous vote of all Directors To incur debts, liabilities or obligations on behalf of the Authority Five Affirmative Votes by Directors Adoption of or revisions to policies of the Authority Five Affirmative Votes by Directors GSA Enforcement Five Affirmative Votes by Directors Authorization to obligate the Authority to participate in litigation, or other legal proceedings Five Affirmative Votes by Directors Amendment of the Agreement Unanimous vote of all Directors, subject to ratification by all Members under 7.01 Any Assessment or Fees levied or imposed by the GSA Unanimous vote of all Directors Budget allocation among Parties for GSA operations after initial GSP Five Affirmative Votes by Directors Removal of a Member from the GSA Five Affirmative Votes by Directors North Kings GSA JPA 11 Section 3.05 - Compensation, Expenses, and Reimbursement. Directors and their alternates shall not be compensated by the Authority for participation on the Board. The Authority shall develop a policy for reimbursement associated with direct expenses. Section 3.06 - Conflicts of Interest. The Authority shall adopt a conflict of interest policy. Section 3.07 – Application of Laws to Authority Functions. The Authority shall comply with all applicable laws in the conduct of its affairs, including, but not limited to, the Joint Exercise of Powers Act (Gov. Code §6500, et seq.); Ralph M. Brown Act (Gov. Code § 54950, et seq.); and conflict of interest laws/regulations (such as Gov. Code §1090, et seq., the requirements of the California Political Reform Act, Gov. Code § 87100, et seq., and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification, 2 California Code of Regulations §18700, et seq., as amended. Section 3.08 – Meetings. The Board of Directors shall fix the hour, date, and place for its regular meetings. Section 3.09 – Committees. The Board of Directors may establish standing committees and ad hoc committees as it deems necessary. The Board of Directors shall establish membership of those committees. The Board of Directors may also dissolve any committee it deems to be no longer necessary. Article IV: Financial Provisions Section 4.01 – Fiscal Year. The Fiscal Year of the Authority shall be from July 1 through June 30 of each year. Section 4.02 – Property Custodian. The Board of Directors shall from time to time designate the officers and persons, in addition to those specified in Section 3.03 above, who shall have charge of, handle, or have access to any property of the Authority. The Authority shall acquire such fidelity bonds or comparable insurance covering such officers and persons in amounts designated by the Board of Directors; provided, that if no bond amount is set by the Board of Directors, no bond shall be required. Such designation shall be subject to ratification by the Members in compliance with California Government Code Section 6505.1. North Kings GSA JPA 12 Section 4.03 – Budget. The initial cost-share for the NKGSA is defined in the attached Exhibit C. These funds serve to develop the Authority’s initial GSP. Subsequent budgets shall be set by the Board of Directors each Fiscal Year, and the Board of Directors shall adopt an annual budget for the Authority for the ensuing Fiscal Year. The Contribution and Participation Percentage may be adjusted by the Board of Directors in the event of admission, withdrawal, reinstatement or termina tion of a Member consistent with Section 5.03. Section 4.04 – Member Contributions To The Authority. All contributions adopted by the Board of Directors as provided in Section 4.03 shall be paid to the Authority on a schedule set by the Board of Directors; provided, that no Party shall be obligated to make any such payment unless and until such Party’s governing body has approved and appropriated the funds necessary to make such payment. In the event a payment by a Party is otherwise required – but is not made because such Party’s governing body has not approved such payment or appropriated the funds necessary to make such payment – such Party shall be subject to termination from the Authority pursuant to Section 5.03(D), but upon any such termination shall not be liable for the amount of such payment. Article V: Relationship of Authority and Its Members Section 5.01 – Separate Entity. In accordance with California Government Code Sections 6506 and 6507, the Authority shall be a public entity separate from the Members. To the greatest extent permitted by law, unless otherwise specifically agreed herein by all Members as to a specific debt, liability and/or obligation, the debts, liabilities and obligations of the Authority shall not be debts, liabilities or obligations of the Members under California Government Code Section 6508.1. The Authority shall own and hold title to all funds, property and works acquired by it during the term of this Agreement. No Member has the power to obligate any other Member hereof and no Member debt, liability or obligation due any third party may be asserted or collected against this JPA, the GSA or any individual Member as a result of membership in this GSA by and among the Members. The Authority shall indemnify, defend, and save harmless the Members, their officers, agents, directors, and employees, from and against any and all claims and losses whatsoever, occurring or resulting to persons, firms, or entities furnishing or supplying work, services, labor, materials or supplies to the Authority in connection with the performance of this Agreement, and, except as expressly provided for by law, from any and all claims and losses accruing or resulting to any persons, firm or entity, for damage, injury, death arising out of our connected with the Authority’s performance of its obligations under this Agreement. The Authority may also acquire such policies of directors and officers liability insurance and in such amounts as the Board of North Kings GSA JPA 13 Directors shall deem prudent. The Board of Directors members, officers, and employees of the Authority shall use ordinary care and reasonable diligence in the exercise of their powers, and in the performance of their duties pursuant to this Agreeme nt. The Board of Directors shall not be liable to the Members to this Agreement for any mistake of judgment or any other action made, taken, or omitted by any agent, employee, or independent contractor selected with reasonable care, nor for loss incurred through the investment of Authority funds or failure to invest same. To the extent authorized under California law, no Director, officer or employee of the Authority shall be responsible for any action made, taken, or omitted, by any other Director, officer or employee. Section 5.02 – Insurance. The Board of Directors shall, from time to time and at least annually, review the general liability, automobile, directors and officers, and other insurance coverage maintained by the Authority for adequacy and de termine the nature, extent and limits of insurance to be maintained by the Authority. The Authority shall purchase and maintain such insurance as the Board of Directors determines to be appropriate after such review. Section 5.03 – Admission, Withdrawal, Reinstatement and Termination of Members. A. Additional qualified Contracting Entities or Interested Parties may participate in the NKGSA by entering into a Participation Agreement or Memorandum of Understanding, as applicable, with the Authority. Withdrawal, reinstatement, and termination of Contracting Entities and Interested Parties shall be governed by the applicable Participation Agreement or MOU. B. Additional public agencies or mutual water companies may join in this Agreement and become a Member to the Authority upon the approval of the Board of Directors. Any new Member to the Authority shall agree to be bound to the terms of this Agreement as if they had been an original signatory hereto. C. Notwithstanding anything herein to the contrary, any Member may withdraw from this Agreement by giving sixty (60) days written notice of its election to do so, which notice shall be given to the Board of Directors, any Contracting Entity, and each Interested Party; provided, that such withdrawal does not in any way impair any contracts, resolutions, indentures or other obligations of the Authority then in effect. In the event of a disagreement between the Authority and the withdrawing Member as to whether such withdrawal shall cause the impairment of an y contracts, resolutions, indentures or other obligations of the Authority, such determination shall be made by a majority vote of the Board of Directors as defined in Section 3.04. Any Member that withdraws and later seeks reinstatement to the Authority shall provide funds to the Authority, proportionate to their responsibility, as if they had never left. A withdrawing Member shall in all events remain liable for its proportionate share of (i) its full amount of the adopted fiscal year budget; (ii) any ca ll for funds or assessment levied by the Authority prior to the date it provides its notice of withdrawal; (iii) any contribution required by Section 4.03 to reflect the Participation North Kings GSA JPA 14 Percentages in existence at the time the subject act or omission occurred; and (iv) the amount of any annual budget approved prior to the date it provides its notice of withdrawal. Should a Member choose to withdraw from the Authority in accordance with the terms of this Agreement, that Member expressly retains the right to serve as the GSA for the portion of the groundwater basin underlying its jurisdictional boundaries to the extent permitted by the Act. D. Any Member may be terminated, by a vote of the Board of Directors as set forth in Section 3.04 above, and upon termination shall no longer be a Member of the Authority. A Member so terminated shall not be liable for the amounts described in clauses (i), (ii) and (iii) of the immediately preceding paragraph except to the extent they are delinquent on the date of termination. E. In the event a Member withdraws from the Authority or is terminated in accordance with the terms and conditions hereof, such Member shall not receive a refund of any amounts advanced to the Authority by such Member prior to the date of its withdrawal or termination and shall be obligated to continue to pay its share of any legal fees and costs for any action in which the Member is named or participating as part of the Authority. F. Notwithstanding the foregoing provisions of Section 5.03, should the Authority be sued for any action or inaction by the Authority, then the Members constituting the Authority at the time of said action/inaction complained of shall not have the right to withdraw from the Authority during the pendency of that suit. Similarly, if the action or inaction upon which a suit is/was filed occurred when a Member was in the Authority but subsequently withdrew prior to the filing of a suit against the Authority, then such departed Member shall participate in the defense of that action as if it was still a Member to the Authority. Section 5.04 – Term and Disposition Of Property Upon Dissolution. A. The Authority shall be formed and come into existence on the Effective Date and shall continue in existence unless terminated by the governing body of each of the Members then a party to this Agreement or at any point in time at which there ceases to be at least two parties to this Agreement, at which point in time this Agreement shall be automatically terminated; provided however, that the Authority and this Agreement shall continue to exist for the purpose of disposing of liabilities distributing funds, property and/or other assets (such funds, property and/or other assets, collectively, the “Authority Assets”), and all other functions necessary to conclude the business of the Authority. B. Notwithstanding any other provision herein, this Agreement shall remain in effect and be binding upon the Members hereto and upon all subsequent Members joined herein for such a period as the Authority desires to engage in any activities under this Agreement. The foregoing provision shall not apply, however, to any Member that North Kings GSA JPA 15 withdraws or is terminated from its participation in the Authority in accordance with this Agreement. C. Upon termination of this Agreement, after the payment and fulfillment of all obligations of the Authority, any Authority Assets remaining shall be distributed to the Parties in proportion to the total contribution made by the Parties toward the funding of the Authority over the lifetime of the Authority's existence. The Authority shall cease to exist when the Authority Assets have been distributed according to the provisions contained in this Section, this Agreement generally, and the Joint Exercise of Powers Act (Gov. Code §6500 et seq.). Article VI: Liabilities A. The Authority, and those persons, agencies and instrumentalities used by it to perform the functions authorized herein, whether by contract, employment or otherwise, shall be exclusively liable for any/all injuries, costs, claims, liabilities, damages of whatever kind arising from or related to activities of the Authority. B. The Authority shall hold harmless and indemnify the Members, and each of them, including their officers and employees, from any claim or liability arising from acts or omissions of the Authority in pursuit of this Agreement, and in so doing, shall provide the Members, and each of them, with legal defense of any and all claims or liabilities and shall pay reasonable attorney’s fees and costs incurred in providing such defense. C. Funds of the Authority may be used to defend, indemnify, and hold harmless the Authority, the Members, and any officers, agents, and employees for their actions taken within the scope of their duties while acting on behalf of the Authority. Article VII: Miscellaneous Provisions Section 7.01 – Amendment. This Agreement may be amended from time to time by the unanimous vote of all of the Members. Section 7.02 – Severability And Validity Of Agreement. Should the participation of any Member to this Agreement, or any part, term or provision of this Agreement be decided by the courts or the legislature to be illegal, in excess of that Member’s authority, in conflict with any law of the State of California, or otherwise rendered unenforceable or ineffectual, the validity of the remaining portions, terms or provisions of this Agreement shall not be affected thereby and each Member hereby agrees it would have entered into this Agreement upon the same terms as provided herein as if that Member had not been party to in this Agreement. Section 7.03 – Assignment. North Kings GSA JPA 16 Except as otherwise provided in this Agreement, the rights and duties of the Members to this Agreement may not be assigned or delegated without the approval of the Board of Directors. Any attempt to assign or delegate such rights or duties in contravention of this section shall be null and void. Any assignment or delegation permitted under the terms of this Agreement shall be consistent with the terms of any contracts, resolutions or indentures of the Authority then in effect. This Agreement shall inure to the benefit of and be binding upon the successors and Board of Directors-authorized assigns of the Members hereto. This section does not prohibit a Member from entering into an independent agreement with another agency regarding the financing of that Member’s contributions to the Authority or the disposition of proceeds which that Member receives under this Agreement so long as such independent agreement does not affect, or purport to affect, the rights and duties of the Authority or the Members under this Agreement. Section 7.04 – Execution In Parts Or Counterparts. This Agreement may be executed in parts or counterparts, each part or counterpart being an exact duplicate of all other parts or counterparts, and all parts or counterparts shall be considered as constituting one complete original and may be attached toget her when executed by the Members hereto. Facsimile and electronic signatures shall be binding. Section 7.05 – Notices. Notices authorized or required to be given pursuant to this Agreement shall be in writing and shall be deemed to have been given when mailed, postage prepaid, or delivered during working hours to the addresses set forth for each of the Members beneath their signatures on this Agreement, or to such other changed addresses communicated to the Authority and the Members in writing. Section 7.06 – Governing Law and Venue. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of California, excluding any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. The parties to this Agreement hereby expressly waive any right to remove any action to a county other than Fresno County as permitted pursuant to California Code of Civil Procedure Section 394. Section 7.07 – Dispute Resolution. The Members agree that any dispute regarding the enforcement or interpretation of any term, covenant or condition of this Agreement (“Dispute”) shall first, for a period of not less than thirty (30) days, be submitted to mediation before a mutually acceptable mediator prior to initiation of litigation or any other binding arbitration or adjudicative dispute resolution process. The Members shall: (i) mediate in good faith; (ii) exchange all documents which each believes to be relevant and material to the issue(s) in the Dispute; (iii) exchange written position papers stating their position on the Dispute and outlining the subject matter and substance of the anticipated testimony of persons having personal knowledge of the facts underlying the Dispute; and (iv) engage and cooperate in such further discovery as the Members agree or mediator suggests may be necessary to facilitate effective mediation. Each Member shall bear its own costs, fees and expenses of the mediation. Venue of the mediation shall be a mutually agreeable city within Fresno County, California. Section 7.08 -Attorney's Fees. If any Member commences any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing Member in such proceeding or action shall be entitled to recover from the other Member(s) its reasonable attorney's fees and legal expenses. IN WITNESS WHEREOF, the Members hereto, pursuant to resolutions duly and regularly adopted by their respective governing boards, have caused their names to be affixed by their proper and respective officers as of the day and year first above-written. COUNTY OF FRESNO [. *~-~ Ernest Buddy~hairman Board of Supervisors REVIEWED AND REC FOR APPROVAL By:~----.---....P.'t:-'...---­ Steven E. Whi , 1rector Department of Public Works and Planning APPROVED AS TO LEGAL FORM Daniel C. Cederberg :::~ North Kings GSA JPA 17 ATTEST: Bernice E. Seidel, Clerk Board of Supervisors APPROVED AS TO ACCOUNTING FORM Vicki Crow, C.P.A Auditor-Controller/ Treasurer-Tax Collector By~f:~/ DeputyO FOR ACCOUNTING USE ONLY Fund: 0001 Subclass 1 0000 Org. No 4360-1250 Account 7295 North Kings GSA JPA 18 EXHIBIT A Kings Subbasin North Kings GSA JPA 19 EXHIBIT B Interested Parties California State University, Fresno Cargill Beef Community Water Center E&J Gallo Wine Fresno County Farm Bureau Fresno Metropolitan Flood Control District Malaga County Water District Pinedale County Water District Self-Help Enterprises Contracting Entities Bakman Water Company North Kings GSA JPA 20 EXHIBIT C Agency Capped 3- Year Budget* Participation Percentage Fresno Irrigation District $ 623,880 32.24% City of Fresno $ 416,938 21.54% City of Clovis $ 195,270 10.09% Bakman Water Company $ 67,966 3.51% City of Kerman $ 66,992 3.46% County of Fresno $ 308,582 15.95% Garfield Water District $ 80,884 4.18% Biola Community Service District $ 30,000 1.55% California State University Fresno $ 67,190 3.47% International Water District $ 77,518 4.01% Total Estimated GW Management Plan Cost $ 1,935,220 100.00% North Kings Groundwater Sustainability Agency Contribution and Participation Percentage *Budget projected through January 2020; per-agency costs capped at amount displayed.